Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 320

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/141)

R & B CIVIL SOLUTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS STEELFIXING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 6 FEBRUARY 2023

Application for approval of the R & B CIVIL SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the R & B CIVIL SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 February 2023. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of an enterprise agreement between R & B Civil Solutions Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023. The application was heard in the Fair Work Commission (FWC). The FWC was asked to consider whether the agreement met the requirements under the Fair Work Act 2009, including that it was made in good faith, was free from coercion and undue influence, and contained minimum terms and conditions that were no less favourable than those provided by the relevant awards or other applicable industrial instruments.

The central legal issues for the FWC to determine were whether the agreement was made in good faith, was free from coercion and undue influence, and whether it contained the minimum terms and conditions as required by the Act. The FWC had to consider submissions from both parties and evidence provided, including the process by which the agreement was negotiated and the extent to which employees were consulted. The FWC also needed to ensure that the agreement did not contain terms that were less favourable than those provided by the relevant awards or other applicable industrial instruments.

The FWC found that the agreement was made in good faith, without coercion or undue influence, and that it contained the required minimum terms and conditions. The FWC accepted that the process followed in negotiating the agreement was appropriate and that employees were adequately consulted. The FWC determined that the agreement was fair and met all statutory requirements. Consequently, the FWC approved the enterprise agreement.

The FWC's final orders were that the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered and would apply to the employees and employers covered by the agreement from the date of approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established